bulk purchase agreement - nanopore store · 2017-01-18 · confidential - january 09, 2017 1 bulk...
TRANSCRIPT
Confidential - January 09, 2017
1
BULK PURCHASE AGREEMENT
PLEASE READ THIS CONTRACT (THIS “AGREEMENT”) CAREFULLY. BY CLICKING
“ACCEPT” YOU (THE “CUSTOMER”) AFFIRM THAT (A) YOU HAVE READ ALL THE
TERMS CONTAINED HEREIN, (B) THIS AGREEMENT IS ENFORCEABLE LIKE ANY
WRITTEN CONTRACT SIGNED BY YOU AND (C) YOU ARE AUTHORIZED TO
REPRESENT AND BIND ANY PERSON FOR WHOM YOU WORK. IF YOU DO NOT
AGREE, DO NOT CLICK “ACCEPT” OR COMPLETE THE ORDER.
Purpose and Scope. These are the contractual terms and conditions under which Oxford makes
available its Hardware and Consumables to Customer. Some of Oxford’s products and services
are subject to software and other license agreements and other written contract terms that are not
provided herein. This Agreement, together with Customer’s Order, create a contract between
Oxford and Customer for the purchase and sale of the Goods. If any terms of this Agreement
conflict with Customer’s Order, the terms of this Agreement control.
Customer’s Intended Use. Customer does not purchase the Goods for personal, family,
domestic, household or other similar use that would trigger applicability of the consumer
protection laws of the jurisdiction in which Customer is located.
1. Definitions
1.1. “Affiliate” shall, with respect to any Person, mean a Person controlled by, under
common control with or controlling such Person.
1.2. “Application Specific IP” shall mean Oxford Proprietary Information that
pertains to or covers aspects, features or applications of the Goods and use thereof
only with respect to specific features, fields or applications, which may include,
for example, regulated or targeted uses.
1.3. “Biological Data” shall mean any data that provides a characterization of the
biological, genetic, biochemical and/or physiological properties, compositions, or
activities of the sample materials. Biological Data shall include processed
nucleotide sequence data but shall exclude Instrument Data.
1.4. “Commercial” shall mean primarily intended for or directed towards commercial
advantages or monetary compensation.
1.5. “Consumables” shall mean a Wash Kit, Sequencing Kit and other chemicals and
materials available from Oxford and used to run samples in the quantity
appropriate for Customer’s use, which standard quantity is stated on Oxford’s
website, and of a type and mix suited to Customer’s use, which type and mix is
requested in Customer’s Order. Consumables include, without limitation,
enzymes and adaptors that enable sample preparation methods, molecular tethers
that enable improved analyte to nanopore binding through interactions with the
membranes, enzymes that allow for controlled transport of analytes through
Confidential - January 09, 2017
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nanopores, buffered solutions for improved ionic conductance and solutions for
washing the Flow Cells between samples.
1.6. “Consumables License” shall have the meaning given in Section 2.1.2 of this
Agreement.
1.7. “Contaminated Flow Cells” shall mean Flow Cells that have been used with or
otherwise in contact with materials of Biohazard Level 3 or higher.
1.8. “Delivery Location” shall have the meaning given in Section 3.1 of this
Agreement.
1.9. “Device” shall mean the MinION, the PromethION or both, to the extent
purchased by Customer from Oxford pursuant to an Order.
1.10. “Documentation” shall mean Oxford’s user manuals, package inserts and similar
documentation for the Goods in effect on the day the Goods ship, which may
contain additional terms and conditions, whether provided with the Goods at the
time of shipment or electronically on Oxford’s website.
1.11. “Excluded Claims” shall have the meaning given in Section 9.1 of this
Agreement.
1.12. “Feedback” shall have the meaning given in Section 4.2 of this Agreement.
1.13. “Flow Cell” shall mean the flowcell with pre-loaded nanopores, membranes that
hold the nanopores and electrochemistry on a chip surface, designed for the
applicable Device.
1.14. “Force Majeure” shall mean an event beyond a Party's reasonable control, and
which could not have been foreseen or which if it could have been foreseen was
unavoidable, such as, without limitation, industrial disputes, strikes, failure of
energy sources or transport networks, acts of God, war, terrorism, riot, civil
commotion, failure of technical facilities, collapse of building structure, malicious
damage, breakdown of machinery or default of suppliers or subcontractors.
1.15. “Goods” shall mean, together, the Hardware and Consumables.
1.16. “Goods Licenses” shall have the meaning given in Section 2.1.2 of this
Agreement.
1.17. “Hardware” shall mean Devices and Flow Cells.
1.18. “Hardware License” shall have the meaning given in Section 2.1.1 of this
Agreement.
1.19. “Instrument Data” shall mean any data generated by or through use of a Device,
including, without limitation, instrument run reports, run parameters, run
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operating conditions, and any data generated by or available through use of
Software that is not Biological Data.
1.20. “Intellectual Property Rights” shall mean patents, rights to inventions,
copyright and related rights, moral rights, trade marks, business names and
domain names, rights in get-up and trade dress, goodwill and the right to sue for
passing off, rights in designs, rights in computer software, database rights, rights
to use, and protect the confidentiality of, confidential information (including
know-how and trade secrets) and all other intellectual property rights, in each case
whether registered or unregistered and including all applications and rights to
apply for and be granted, renewals or extensions of, and rights to claim priority
from, such rights and all similar or equivalent rights or forms of protection which
subsist or will subsist now or in the future in any part of the world.
1.21. “Invoice” shall have the meaning given in Section 3.5.1 of this Agreement.
1.22. “Law” shall mean any local, state or federal law, order or regulation of the United
States of America (the “U.S.”) or the United Kingdom (the “U.K.”), or any law,
order or regulation of another sovereign with jurisdiction over Customer or the
Goods.
1.23. “Metrichor Interface” shall mean a website provided by Metrichor Ltd. from
which applications in the data processing pipeline may be accessed for purposes
of processing Instrument Data.
1.24. “Metrichor Ltd.” shall mean Metrichor Limited, a subsidiary of Oxford
Nanopore Technologies Ltd., registered in England under company number
08534345 and having its registered office at Edmund Cartwright House 4 Robert
Robinson Avenue, Oxford Science Park, Oxford, OX4 4GA.
1.25. “MinION” shall mean the outer casing into which one Flow Cell fits, and
associated electronic components.
1.26. “Non-Commercial” shall mean not intended for or directed towards commercial
advantages or monetary compensation.
1.27. “Order” shall mean Customer’s order for the Goods, as set out in an electronic
order placed via the Oxford website, http://www.nanoporetech.com, or other web
address specified in the order.
1.28. “Oxford” shall mean with respect to any Order, the member of the Oxford Group
that is a counterparty to such Order.
1.29. “Oxford Confidential Information” shall mean any information disclosed by
any member of the Oxford Group that is disclosed in a manner such that
Customer should reasonably understand such information to be confidential.
Oxford Confidential Information shall, regardless of marking, include but shall
not be limited to, the Consumables, Hardware pricing, Consumables pricing,
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Order interface specifications, equipment, Software, Instrument Data, Oxford
Group research, development, trade secrets, software design, data collection,
inventions, source code, APIs, software specifications, software routines, screen
displays, data entry formats, data base structures, data base formats, flow charts,
printouts and prompting sequences embodied in any software; provided, however,
Oxford Confidential Information shall not include (a) any information already in
the public domain (other than as a result of a violation of any duty of
confidentiality) at the time of disclosure by Oxford; (b) Biological Data; (c)
information already known to Customer at the time of disclosure (other than as a
result of a violation of any duty of confidentiality); or (e) information disclosed to
Customer in good faith by a third party who has an independent right to such
information (other than as a result of a violation of any duty of confidentiality).
1.30. “Oxford Group” shall mean Oxford Nanopore Technologies, Ltd., and any of its
Affiliates.
1.31. “Oxford Proprietary Information” shall mean (a) the Hardware, Software, the
Metrichor Interface and Instrument Data; and (b) all other materials owned or
licensed by any member of the Oxford Group, including, the design and processes
used to manufacture the Goods and any Intellectual Property Rights therein or
appurtenant thereto.
1.32. “Party” or “Parties” in singular or plural usage, shall mean Customer or Oxford
as required by the context.
1.33. “Person” shall mean any individual, firm, partnership, company, corporation,
association, organization, government, government agency or other legal entity.
1.34. “PromethION” shall mean the outer casing into which forty-eight Flow Cells fit,
and associated electronic components.
1.35. “Pseudomized Data” shall mean data in which personal data is replaced with one
or more artificial identifiers, or pseudonyms. For example a name is replaced with
a unique number and the unique number is not made available in connection with
the other data.
1.36. “Research Use” shall have the meaning given in Section 2.2.2 of this Agreement.
1.37. “Sequencing Kit” shall mean kits for preparation of Customer’s samples.
1.38. “Single Pores” shall mean the channels or nanopores on a Flow Cell through
which molecules are sensed which are measureable individually.
1.39. “Software” shall mean Oxford’s MinKNOW software, Metrichor Agent software,
Base Caller software, and other Device software, as applicable, whether
embedded in the Hardware or provided separately, and related documentation.
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1.40. “Specifications” shall mean Oxford’s written specifications for the specific
version of the Goods in effect on the date the Goods ship from Oxford.
1.41. "Wash Kit" shall mean the wash or flushing solution.
2. Provision of Goods
2.1. Grants of Rights to Goods
2.1.1. Grant of Rights to Hardware. Contingent upon Customer’s acceptance of
this Agreement, and subject to its terms, Oxford hereby grants, under
Oxford Group’s Intellectual Property Rights other than Application
Specific IP, to Customer a non-exclusive, non-transferable, limited,
personal, revocable right to use any Devices and Flow Cells made
available by Oxford to Customer solely together (and not in combination
with third party products), as specified in an Order referencing this
Agreement and solely for Non-Commercial Research Use in accordance
with this Agreement and the Documentation, as may be amended from
time to time (the “Hardware License”). Since there is a useful life for the
Flow Cells, the license extends solely for the period of time specified in
the Order. Customer acquires no title or proprietary rights in the
Hardware. This Hardware License does not give Customer the right to use
the Hardware to provide non-research services to any third party. The
Hardware may be used solely with the Consumables.
2.1.2. Grant of Rights to Consumables. Contingent upon Customer’s acceptance
of this Agreement, and subject to its terms, Oxford hereby grants, under
Oxford Group’s Intellectual Property Rights other than Application
Specific IP, to Customer a non-exclusive, non-transferable, limited,
personal, revocable right to use the Consumables purchased by Customer
from Oxford with the Hardware, as set forth in an Order referencing this
Agreement, solely for Non-Commercial Research Use in accordance with
this Agreement and the Documentation, as may be amended from time to
time (the “Consumables License,” and, together with the Hardware
License, the “Goods Licenses”). Since there is a useful life for the
Consumables, the license extends solely for the period of time specified in
the Order. This Consumables License does not give Customer the right to
use the Consumables to provide non-research services for any third party.
2.1.3. Software, Data and Metrichor. Customer’s rights under this Section 2.1
are contingent upon Customer’s acceptance of the MinKNOW / Metrichor
Agent End User License Agreement, if applicable, and the Metrichor
Terms of Use. Customer acknowledges and agrees that acceptance of this
Agreement operates as acceptance of the MinKNOW / Metrichor Agent
End User License Agreement, if applicable, and the Metrichor Terms of
Use, the terms of which are incorporated by reference herein. Further, use
of the Goods requires internet connectivity between Customer and Oxford
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or its affiliate and appropriate configuration of firewalls to facilitate
transfer of data between Customer and Oxford.
2.2. Restrictions on Rights
2.2.1. Use Restrictions. The Goods shall not be used (i) by any Person that is, or
is affiliated with, a current or potential competitor of the Oxford Group;
(ii) on behalf of or for the benefit of any such competitor; (iii) for the
development of any other product or service that competes or could
compete with the products or services of the Oxford Group (except to the
extent applicable laws specifically prohibit such restriction) or (iv) for
monitoring, benchmarking or other competitive purposes. Customer
represents and warrants that Customer will not use the Goods in
contravention of this provision. Without limiting the generality of the
foregoing, competitor shall (A) be deemed to include an entity or person
that develops, sells or distributes any third party tool, software process or
system for genomic sequencing, analysis of nucleic acids or molecule
sensing and (B) not be deemed to include customers of competitors solely
because they are customers of competitors or government agencies by
virtue of their funding of research by competitors of any member of the
Oxford Group.
2.2.2. Research Use Only. Customer’s Goods Licenses shall be granted solely
for Customer’s Research Use. “Research Use” means use for internal
research (which includes research services provided to third parties,
provided such services are not Commercial) and specifically excludes any
act by Customer, or if permitted by Customer, a third party to: (a) use the
Goods other than in accordance with this Agreement, the Goods’
Specifications, Oxford’s instructions or the Documentation; (b) use the
Goods in a manner that requires grants of rights or a license to Application
Specific IP; (c) use Consumables, where such use is a re-use of a
previously used Consumable; (d) use the Goods for a clinical, diagnostic,
Commercial or other non-research purpose; (e) use the Hardware in
conjunction with reagents or consumables not sold by or authorized for
use with the Hardware by Oxford; (f) use the Consumables in conjunction
with non-Oxford hardware, flow cells or devices; (g) modify or create any
derivative works of the Goods (except to the extent applicable laws
specifically prohibit such restriction); (h) copy the Goods except as
approved in writing by Oxford (except to the extent applicable laws
specifically prohibit such restriction); (i) separate the Goods into their
component parts; (j) reverse engineer, decompile, disassemble or
otherwise attempt to derive the composition of the Goods (except to the
extent applicable laws specifically prohibit such restriction); (k) extract or
isolate components of the Goods or subject them to non-authorized
analysis; (l) gain access to or determine the methods of operation of the
Goods; (m) redistribute, encumber, sell, rent, lease, sublicense or
otherwise transfer rights to Goods; or (n) remove or alter any trademark,
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logo, copyright or other proprietary notices, legends, symbols or labels in
or on the Goods or components thereof.
2.2.3. Useful Life. Customer acknowledges and agrees that Hardware is
authorized for multiple uses, but shall not be reused longer than its useful
life, which useful life is stated on the Oxford website at
http://www.nanoporetech.com or as otherwise stated on the Order.
Customer acknowledges and agrees that Consumables are authorized for
single use only in accordance with Documentation. Customer shall not use
Consumables with products other than the Hardware. Customer shall use
Consumables within the number of weeks following delivery that is posted
by Oxford on its website for the particular type and mix of Consumables
ordered and shall not use Consumables after such time. Customer
acknowledges and agrees that the Goods will not be handled other than by
qualified and trained Persons.
2.3. Safeguarding Goods. Customer shall: (a) maintain the Goods in good condition
and in a safe location, under environmental conditions as specified in the
Documentation and (b) give Oxford such information about the Goods as Oxford
may request from time to time.
2.4. Returning Hardware. Customer shall keep the Hardware in Customer’s possession
at the Delivery Location until Customer returns them to Oxford or destroys them
in accordance with Oxford’s instructions. Customer shall not resell, distribute or
transfer the Hardware to any third party. Customer shall return to Oxford, using
the prepaid packaging provided by Oxford, the Flow Cells as soon as reasonably
possible, except that Customer shall not return Contaminated Flow Cells to
Oxford, and instead shall provide Oxford proof of legal and appropriate
destruction of Contaminated Flow Cells. Additionally, Customer shall, upon
termination of this Agreement, return to Oxford, using the prepaid packaging
provided by Oxford, all Hardware to which Customer has rights and which
remain in Customer’s possession or the possession of third party at the time of
such termination (except Contaminated Flow Cells). Oxford reserves the right to
recover from Customer monetary compensation for any Hardware not returned or
for which proof of legal and appropriate destruction of Contaminated Flow Cells
has not been provided to Oxford.
3. Orders; Delivery; & Payment
3.1. Orders. Customer may request orders for Goods to be delivered over a period of
up to twelve (12) months; provided that, at least the minimum number of any
Goods ordered as stated on the Order must be scheduled for delivery at the time
of the Order. All requests for orders are subject to acceptance by Oxford. Unless
otherwise specified in an Order, there is up to a one (1) month lead time from
acceptance by Oxford of an Order (or a request for delivery of Goods previously
ordered) and delivery of the Goods to the carrier.
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3.2. Delivery. Oxford will aim to deliver the Goods to the carrier by the delivery
date(s) specified in Customer’s Order for purchase of Goods; provided, however,
Oxford reserves the right to, in its sole discretion, revise delivery date(s). The
carrier will deliver the Goods to the location set out in Customer’s Order (the
“Delivery Location”). The Goods are deemed delivered upon loading onto the
commercial carrier at Oxford’s facility. From the time of such delivery, Customer
is responsible for the risk of loss of or damage to the Goods; provided, that, if
specified in the Order, Oxford will procure insurance on Customer’s behalf to
cover risk of loss during shipment. If the Goods are lost or damaged while being
transported, Oxford will help Customer in communicating with the carrier with
respect to such lost and/or damaged Goods. Title to Consumables passes upon
delivery of the Consumables to the commercial carrier; Customer takes no title in
the Hardware.
3.3. Inspection. Customer shall make prompt inspection of the Goods to confirm that
they have arrived without damage, defect or shortage and run a quality control
check on the Flow Cells in accordance with the Specifications. Customer may
return the Goods or a portion thereof if damaged or defective on delivery, and
may seek correction of any shortage or mistake in composition of the Goods, by
contacting Oxford’s Customer Solutions group using contact details as stated on
the Order within ten (10) business days after the day on which the Goods were
delivered to the Delivery Location. Oxford’s Customer Solutions group will
provide Customer with instructions on returning the Goods and on procuring
replacements for the Goods. If Customer does not contact Oxford within this ten-
day period, Oxford will deem the Goods accepted by Customer.
3.4. Pre-printed Terms. Each Order once accepted by Oxford, as confirmed by an
email from Oxford, shall become binding upon Customer and Oxford and shall be
governed by the terms set out in this Agreement. Any terms proposed in
Customer’s acceptance of a quotation or a purchase order which add to, vary
from, or conflict with the terms herein or in the quotation are hereby rejected.
Any such proposed terms shall be void and the terms herein and in the email
confirming acceptance of the Order shall constitute the complete and exclusive
statement of the terms and conditions of the Agreement between the parties with
respect to the applicable Order.
3.5. Fees; Shipping Costs; Taxes.
3.5.1. Fees. The price of the Goods (the “Fee”) is as shown in Customer’s Order.
Oxford will provide Customer with an invoice setting forth the Fee and
other charges, if any, set out in Section 3.5.2. of this Agreement or in the
Order, payable by Customer under Customer’s Order (the “Invoice”) upon
notice of each delivery under Customer’s Order.
3.5.2. Shipping Costs; Taxes; Insurance. Oxford will not be responsible for any
taxes (including value added tax), duties, levies or other government fees;
standard packaging, delivery and handling charges or shipping insurance
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charges. If any such charges apply, Oxford will add them to Customer’s
Invoice and Customer is responsible to pay such charges in accordance
with the payment terms applicable to the payment of Fees, as set forth in
Section 3.6. If Customer is a tax exempt Person, Oxford may require proof
of such status.
3.6. Payment Terms. Customer agrees to pay to Oxford the Fee and other charges
under Customer’s Order in full according to the payment terms set forth in
Customer’s Order, or, if payment terms are not specified therein, within thirty
(30) days of receipt of the Invoice. Except as otherwise provided in an Order, all
fees must be paid within twelve (12) months of the Order date and any Goods
ordered but not scheduled for delivery within twelve (12) months of the Order
date are forfeited, unless the delay is caused by Oxford. All payment must be in
the manner and currency specified in the Order. Time of payment is of the
essence. Customer shall not attempt to set off payments from one Invoice or
Order against another Invoice or Order. However, Oxford may set off any amount
owed to Customer against any amount Customer owes to Oxford under this
Agreement or any separate agreement. If Customer is late in making payment on
any Order, without affecting Oxford’s other rights, Oxford may (i) suspend
delivery under the Order or cancel the Order, (ii) reject future Orders from
Customer and/or (iii) charge Customer a late-payment charge from the date
payment is due until the past-due Invoice(s) is paid at the rate of 4% above the
base rate of Barclays Bank per month or the highest rate allowed by law,
whichever is less. If Oxford appoints a collection agency or an attorney to recover
any unpaid amounts, Oxford may charge Customer and Customer agrees to pay
all reasonable costs of collection, including all reasonable attorneys’ fees. Fees
paid are not refundable.
3.7. Insolvency. To the extent permissible under applicable law, if Customer becomes
subject to any of the events listed below or Oxford reasonably believes that
Customer is about to become subject to any of them and Oxford notifies
Customer accordingly, then without limiting any other right or remedy available
to Oxford, Oxford may cancel or suspend any deliveries under the Agreement
without incurring any liability for so doing, and any outstanding amounts in
respect of the Goods delivered to Customer will become immediately due. For
the purposes of this Section 3.7, the relevant events are: Customer insolvency;
Customer proposal of an individual, company or partnership voluntary
arrangement; having a receiver, administrator or manager appointed over the
whole or any part of Customer’s business or assets; a petition presented, order
made or resolution passed for Customer’s winding up, bankruptcy or dissolution;
if Customer should otherwise propose or enter into any composition or
arrangement with Customer’s creditors or any class of them; if Customer ceases
or threatens to cease to carry on business or if Customer claims the benefit of a
statutory moratorium; or Customer suffers any event which is analogous to any of
these events in any part of the world.
4. License Grant and Obligations
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4.1. Instrument Data.
4.1.1. Grant of License to Data. Contingent upon Customer’s acceptance of this
Agreement, and subject to its terms, Oxford hereby grants, under Oxford
Group’s Intellectual Property Rights other than Application Specific IP, to
Customer a limited, personal, revocable, non-exclusive, non-transferable,
non-sublicensable license to use Instrument Data solely in connection with
use of associated Goods during the term, as defined in Section 6.1 of this
Agreement. Customer shall not, and shall not permit any third party to,
disclose, transmit, use or process Instrument Data, or attempt to do any of
the foregoing, except in accordance with the terms of this Agreement and
any other agreements to which Customer is or, from time to time, becomes
bound with respect to Customer’s use of the Goods, Software or Metrichor
Interface. Customer further agrees not to make available to any third party
Biological Data or Instrument Data generated through use of a Device or
Software, whether or not for processing on Customer’s behalf, within the
first forty-eight (48) hours after such Data is first written to a disk at
Customer’s direction. Customer acknowledges and agrees that Customer’s
or Service Provider’s access to, download of and/or use of the Goods,
Software or Metrichor Interface may require that Instrument Data and
Biological Data be transmitted, processed or stored offline, outside of the
Software or Metrichor Interface or outside of Customer’s state or country
solely as required to provide to Customer or improve the Goods or
services or manage Oxford’s business.
4.1.2. Pseudomized Health Data. Customer shall not upload, transmit, store or
modify data that contains the information of any Person, including without
limitation, data consisting of genomic information, whether or not
Instrument Data, unless Customer has pseudomized such data and does
not make available to Oxford information that permits such Pseudomized
Data to be re-identified and, except with respect to contact information of
Customer and its relevant personnel, does not make available personal
data or personal information as defined by applicable law (e.g., HIPAA,
EU Data Protection Directive (Directive 96/46/EC on the Protection of
Individuals With Regard to the Processing of Personal Data and on the
Free Movement of Such Data), Personal Data Protection Act 2012 (No. 26
of 2012), Privacy Act 1988 (Cth)). For example, Customer shall not
provide the name, date of birth, address, social security number,
government-issued identification number or any other information that
could directly or indirectly identify the Person from whom any genomic or
other information was derived.
4.2. Grant of License in Feedback. Customer hereby grants Oxford a worldwide, non-
exclusive, perpetual, irrevocable, royalty free, fully paid up right and license to
use, copy, modify, sell, publish, distribute, sub-license and create derivative
works using suggestions, comments and feedback regarding the Oxford
Proprietary Information and any content Customer may add to Oxford’s
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Resources and Support website (collectively, “Feedback”) in any manner and for
any purpose. Any of the members of the Oxford Group may, in its sole discretion,
and without compensation to or attribution of Customer or any third party, use
Feedback Customer provides in any way, including in future modifications of the
Goods, Software and/or Metrichor Interface. Customer represents that Customer’s
Feedback is not subject to any license terms that would purport to require any of
the members of the Oxford Group to comply with any additional obligations with
respect to any products that incorporate any Feedback. With respect to any
Customer that is a U.S. government entity, the foregoing right and license shall be
construed as a non-exclusive permission and shall apply only to the extent
permitted under applicable U.S. federal law.
4.3. No Infringement. Customer shall take no action that, in any way, would infringe
Intellectual Property Rights in the copyrighted programs, Goods, Software,
Metrichor Interface or data of the Oxford Group, or that would infringe
Intellectual Property Rights in Oxford Proprietary Information. Customer shall
not remove any proprietary, copyright, confidential or trade secret legend from
any portion of the Goods or any data or support materials provided to Customer
by Oxford.
4.4. Compliance. Customer represents and warrants that Customer is authorized to
enter into this Agreement and comply with its terms. Furthermore, Customer
represents and warrants that Customer will at any and all times meet Customer’s
obligations hereunder and will ensure that the way in which and the purposes for
which it uses the Goods complies with all laws, regulations and government
policies that may apply. Customer is responsible for obtaining any necessary
approvals, licenses and permissions that may be required for such use and
operation. Without limitation to the other restrictions set out in this Agreement,
Customer will in no event use or allow use of the Goods or any parts of them in
connection with the development, production, handling, operation, maintenance,
storage, detection, identification or dissemination of chemical or biological
weapons or other military end-use of any kind.
4.5. Regulatory Acknowledgement. The Goods are labeled for Research Use only.
Customer acknowledges and agrees that (a) the Goods have not been approved,
cleared or licensed by the United Stated Food and Drug Administration or other
regulatory entity, whether foreign or domestic, for any specific intended use; (b)
the Goods are not for use in diagnostic, therapeutic or clinical procedures; (c) the
Goods should be used in strict accordance with applicable instructions and
Documentation and (d) Customer must ensure it has any regulatory approvals
necessary for Customer’s intended use of the Goods. Customer further
acknowledges and agrees to comply with all applicable Laws when using,
maintaining and disposing of the Goods.
5. Ownership; Confidential Information
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5.1. Ownership of Intellectual Property by Oxford. The Oxford Group or its licensors,
as applicable, are the sole and exclusive owners of the Intellectual Property Rights
in the Oxford Proprietary Information and in all media, printouts, papers, support
materials, or hard copies containing or bearing such Intellectual Property Rights.
Except where prohibited under applicable law, Customer agrees not to contest
Oxford’s ownership of any copyright or any other applicable Intellectual Property
Right in the Software. Customer shall have a license to use the Goods, and the
Intellectual Property Rights therein, only to the extent specifically provided in this
Agreement.
5.2. Ownership of Intellectual Property by Customer. Subject to the terms and
conditions herein, Customer retains its rights with respect to Biological Data
resulting from Customer’s use of the Goods.
5.3. Reservation of Rights. Each party reserves all of its rights. Except for any express
license herein, no license is granted.
5.4. Confidential and Proprietary Information.
5.4.1. Customer agrees not to disclose to third parties and to use Customer’s best
efforts to keep confidential at all times all Oxford Confidential
Information Customer receives from any member of the Oxford Group.
Customer agrees not to use Oxford Confidential Information other than for
the purposes contemplated by this Agreement. Customer acknowledges
and agrees that, unless otherwise specifically provided herein or agreed by
Oxford in writing, the Goods, including the specific design and structure
of individual components, provided to Customer by any member of the
Oxford Group constitute confidential proprietary information and trade
secrets of Oxford. Customer agrees not to transfer, copy, disclose, provide
or otherwise make available Oxford Confidential Information to any third
party, except in the provision of research services to third parties using the
Goods, without the prior written consent of Oxford.
5.4.2. Customer agrees to use best efforts to maintain the security of the Oxford
Confidential Information provided to Customer by any member of the
Oxford Group. Customer will use its best efforts to cooperate with and
assist Oxford in identifying and preventing any unauthorized use, copying,
or disclosure of the Goods. Customer shall secure and protect all printed
materials, manuals, software programs, disks, copies and other media, if
any, that embody, contain or describe any Oxford Confidential
Information in a manner consistent with the protection of Oxford’s rights
therein and to take appropriate action by instruction or agreement with its
employees to satisfy its obligations hereunder. Customer further agrees
that it shall be strictly liable for all damages to the Oxford Group that
result from any disclosure of any Oxford Confidential Information to any
third party. If Customer is a government entity subject to legal
requirements regarding public disclosure, Customer will not be in breach
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of this Agreement as a result of its compliance with such laws; provided,
to the extent permitted by applicable law, that: (a) Customer promptly
informs Oxford of a request to disclose any Oxford Confidential
Information or making a determination that disclosure of any of the same
is required under applicable law; and (b) Customer identifies, and
discloses to Oxford, the requesting party, the information to be disclosed
and the specific binding legal authority requiring such disclosure with
sufficient time for Oxford to interpose an objection to such disclosure or
take such other action as Oxford deems necessary to protect the Oxford
Confidential Information. The Software, Specifications and Instrument
Data are treated by Oxford as trade secrets.
5.4.3. Customer acknowledges that the means used by the Oxford Group that are
designed to secure software, data and systems related to this Agreement
may require that a Device or set of Devices and/or a Flow Cell or set of
Flow Cells match a user ID assigned to Customer and/or that such Devices
and Flow Cells are matched according to the Customer’s Order and/or that
particular workstations match a unique Oxford-issued keys. Customer
acknowledges this may limit Customer’s ability to share Devices and that,
notwithstanding these measures (and other reasonable administrative,
physical and technical safeguards), Oxford cannot ensure the security of
information or other materials made available hereunder in Oxford’s
custody or control. Customer further acknowledges that use of Goods
may be dependent on rights to use software separately licensed on a non-
transferable basis.
5.5. Restricted Rights Notice. The Goods made available under this Agreement
incorporate commercial computer software programs developed exclusively at
private expense. Use, duplication and disclosure by any government shall be in
accordance with, and subject to these terms and conditions that are customarily
provided to the public. If Customer is a government entity and/or Customer’s use
is funded by the government, Customer is hereby on notice that any data provided
by Oxford pursuant to this Agreement is developed exclusively at private expense
and are trade secrets, confidential and privileged, or are commercial or financial
data and are confidential or privileged. To the extent required under applicable
law, this data may be reproduced and used by the government with the express
limitation that it will not, without written permission of Oxford, be used for
purposes of manufacture nor disclosed outside the government and that the
applicable rights legends shall be marked on any reproduction of any technical
data, whether reproduction is in whole or in part. Oxford reserves all rights and
licenses not expressly granted under this Agreement, including, without
limitation, all rights in trademarks and associated goodwill.
6. Term; Termination
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6.1. Term. This Agreement shall be effective as of the date on which Customer
submits its Order and will remain in effect for one (1) year unless earlier
terminated.
6.2. Termination. Except as otherwise provided in Section 10.2, either Party may
terminate this Agreement upon prior written notice if the other Party materially
breaches this Agreement and fails to cure such breach within 30 days of receiving
notice of such breach; provided, however, that Oxford shall have the right to
terminate this Agreement immediately and without notice upon (a) Customer’s
breach of the provisions of Sections 2 or 3 of this Agreement or (b) Customer
filing an action or commencing a proceeding contesting Oxford’s ownership of or
the validity or novelty of any Oxford patent. Any breach by Customer of any
agreement between Service Provider and Customer may, at Oxford’s discretion,
be deemed a breach of this Agreement and/or any of the Agreements between the
parties. Termination of this Agreement shall automatically terminate the
MinKNOW/Metrichor Agent End User License Agreement.
6.3. Effect of Termination. Upon any expiration or termination of this Agreement, (a)
the rights and licenses granted to Customer under this Agreement shall
immediately terminate and (b) Customer shall immediately cease using and return
the Goods, and return, or, at Oxford's request, destroy, all tangible embodiments
of the Goods and any other Oxford Confidential Information in Customer’s
possession or control, together with all related materials, copies or derivative
versions thereof in any form. The expiration or termination of this agreement shall
have no impact on the continuing rights of Oxford under Section 4 of this
Agreement.
7. Limited Warranties. All warranties are personal to Customer and may not be transferred
or assigned to a third party, including an affiliate of Customer. All warranties are specific
to the Delivery Location and do not transfer if the Goods are moved from the Delivery
Location.
7.1. Warranty for Hardware. Oxford warrants to Customer during the term of this
Agreement that: (a) Devices will perform according to Specifications in all
material respects and (b) the number of Single Pores per Flow Cell shall be
greater than or equal to the number of Single Pores specified in the applicable
Order, solely as determined by reference to Instrument Data collected by Oxford’s
Software from completion of the quality control testing required under Section
3.3. The foregoing warranty does not apply to the extent non-conformance is due
to (a) abuse, misuse, neglect, negligence, accident, improper storage or use
contrary to the Documentation, Specifications or this Agreement, including,
without limitation, provisions regarding useful life; (b) improper handling,
installation, maintenance or repair (unless performed by Oxford’s personnel); (c)
unauthorized alterations; (d) Force Majeure events or (e) use with a third party’s
good not provided by Oxford.
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7.2. Remedy and Procedure for Warranty Coverage. Oxford will, at its sole option,
repair a non-conforming Device covered by this warranty with functionally
equivalent, reconditioned or new Device. Oxford will, subject to Customer’s
compliance with Section 3.3, replace a non-conforming Flow Cell covered by this
warranty. In order to be eligible for repair or replacement under this warranty, in
addition to compliance with Section 3.3, Customer must (a) promptly contact
Oxford’s Customer Solutions group to report the non-conformance, (b) cooperate
with Oxford in confirming or diagnosing the non-conformance, (c) return the non-
conforming piece of Hardware, transportation charges prepaid, to Oxford
following Oxford’s instructions or, if agreed by Oxford and Customer, grant
Oxford’s authorized Customer Solution personnel access to the non-conforming
Hardware in order to confirm the non-conformance and make repairs and/or
arrange replacements. To the maximum extent permitted by applicable law, these
are Customer’s sole remedies and Oxford’s sole obligations under this warranty.
7.3. Third Party Goods and Warranty. Oxford makes no warranty or representation
and gives no indemnity in respect of any third party's products, whether or not
obtained from Oxford. Oxford’s supply of any such third party-produced
products may be subject to separate terms and conditions of the manufacturer or
licensor, which will be specified at the time of purchase in relation to such
product.
7.4. LIMITATIONS. EXCEPT FOR ANY WARRANTY, CONDITION OR
GUARANTEE THAT CANNOT BE EXCLUDED BY LAW, ALL
WARRANTIES IMPLIED OR OTHERWISE NOT STATED IN THIS
SECTION 7 ARE EXCLUDED. TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW AND SUBJECT TO ANY SUCH WARRANTIES,
CONDITIONS OR GUARANTEES WHICH CANNOT LAWFULLY BE
EXCLUDED, OXFORD DOES NOT MAKE, AND HEREBY DISCLAIMS,
ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
REGARDING THE ACCURACY, ADEQUACY, TIMELINESS,
COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR NON-INFRINGEMENT OF ANY KIND WITH RESPECT TO
THE GOODS, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF
FITNESS FOR ANY PARTICULAR PURPOSE (INCLUDING ANY PURPOSE
RELATING TO A CUSTOMER’S LEGAL OR REGULATORY
COMPLIANCE OBLIGATIONS). WITHOUT LIMITATION OF THE
FOREGOING, OXFORD EXPRESSLY DOES NOT WARRANT THAT THE
GOODS WILL MEET CUSTOMER’S REQUIREMENTS OR THAT
OPERATION OF THE GOODS WILL BE UNINTERRUPTED OR ERROR
FREE. CUSTOMER ASSUMES RESPONSIBILITY FOR THE RESULTS
OBTAINED FROM CUSTOMER’S USE OF THE GOODS. Customer
acknowledges that Customer has not relied on any statement, promise,
representation, assurance or warranty made or given by any member of the
Oxford Group or its agents which is not set out in this Agreement.
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8. LIMITED LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
OXFORD GROUP WILL NOT BE LIABLE TO CUSTOMER, WHETHER IN
CONTRACT, TORT, BREACH OF STATUTORY DUTY OR OTHERWISE, FOR
ANY LOSS OF PROFIT OR SAVINGS OR ANY INDIRECT, SPECIAL, PUNITIVE,
INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGES, EVEN IF ADVISED
OF THE POSSIBILITY OF SUCH DAMAGE AND HOWSOEVER ARISING
(WHETHER IN TORT (INCLUDING FROM OXFORD’S NEGLIGENCE), IN
CONTRACT, UNDER STATUTE OR OTHERWISE). SUBJECT TO SECTION 10.3,
IN ALL EVENTS, THE MAXIMUM DAMAGES OF ANY TYPE FOR WHICH THE
OXFORD GROUP SHALL BE LIABLE UNDER THIS AGREEMENT FOR
CUSTOMER’S USE OF THE GOODS IS LIMITED TO THE AMOUNT OF FEES
PAID BY CUSTOMER TO OXFORD UNDER THE APPLICABLE ORDER OVER
THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO
LIABILITY. HOWEVER, THESE PROVISIONS DO NOT LIMIT OXFORD’S
LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OXFORD’S
GROSS NEGLIGENCE OR FRAUD, FRAUDULENT MISREPRESENTATION OR
ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY LAW. Any action for
breach of Agreement or claim for indemnification must be commenced within one year
of delivery of the Goods to the carrier, following which Customer covenants not to bring
or permit the making of any claim, action or proceeding in connection with this
Agreement or its subject matter.
9. Indemnification
9.1. Indemnification by Oxford. Subject to these terms and conditions, including,
without limitation, the exclusions listed below, Oxford shall defend, indemnify
and hold harmless Customer against damages up to one million U.S. Dollars
finally awarded in any legal action brought by a third party against the Customer
alleging that the Goods, when used for Research Use, in accordance with this
Agreement, the Documentation and the Goods’ Specifications, infringe the
Intellectual Property Rights of a third party which are valid and enforceable under
the laws of the U.S. or any Member State of the European Union. Oxford has no
obligation to defend, indemnify or hold harmless Customer for any such
infringement claim to the extent such infringement arises from: (a) the use of the
Goods in any manner or for any purpose other than Research Use, (b) the use of
the Goods in any manner not in accordance with the Specifications, the
Documentation or this Agreement, (c) the use of the Goods in combination with
any other products, materials or services not provided by Oxford, (d) the use of
the Goods to perform any process not supplied by Oxford, (e) Customer’s breach
of any terms of this Agreement, (f) Customer’s modification of the Goods or (g)
Customer’s failure to acquire additional Intellectual Property Rights necessary to
use the Goods outside the scope of this Agreement (together, the “Excluded
Claims”). As a condition to this indemnity, Customer must (i) notify Oxford in
writing as soon as Customer becomes aware of any claim, (ii) not admit any
liability or take any other action in connection with the claim that could affect a
defense, (iii) allow Oxford, at its sole option, to solely control the defense or
settlement of the claim and (iv) give Oxford reasonable information, cooperation
Confidential - January 09, 2017
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and assistance. THIS INDEMNITY IS OXFORD’S ONLY LIABILITY TO
CUSTOMER, AND CUSTOMER’S ONLY REMEDY, FOR ANY
INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY OR IN
CONNECTION WITH ANY OF THE GOODS.
9.2. Avoidance of Infringement. If Oxford believes that the Goods or any part thereof
have become or may become the subject of an infringement claim, Oxford shall
have the right, in its sole discretion, to (a) procure for Customer the right to
continue using the Goods, (b) modify or replace the Goods with a substantially
equivalent non-infringing substitute or (c) require the return of the Goods and
terminate the rights, license and any other permissions provided to Customer with
respect to the Goods and refund Customer the depreciated value of the returned
Goods at the time of such return; provided, however, that no refund will be given
for used-up or expired Consumables.
9.3. Customer Responsibility. Customer agrees to assume full responsibility for
compliance with this Agreement and all liabilities, costs, expenses, damages and
actual losses suffered or incurred by Customer, its affiliates, and their employees,
officers and directors (“Customer Group”) in connection with: (a) any breach by
the Customer Group of this Agreement; (b) any failure by the Customer Group to
use any materials or services made available hereunder in accordance with
Oxford’s written instructions; (c) Customer Group’s use of any materials made
available hereunder; or (d) any introduction by the Customer Group of hazardous
substances into or onto any materials made available hereunder.
10. General Provisions
10.1. Export Controls. Customer represents and warrants that Customer is not a citizen,
national, or resident of, and is not under control of, the government of Cuba, Iran,
Sudan, Libya, North Korea, Syria, nor any country to which the U.S. or the EU
has prohibited export and that Customer and relevant Customer personnel are not
listed on the United States Department of Treasury lists of Specially Designated
Nationals, Specially Designated Terrorists, and Specially Designated Narcotic
Traffickers, nor is Customer listed on the United States Department of Commerce
Table of Denial Orders. The Goods or part thereof may be subject to local export
control laws and regulations and Customer must not, directly or indirectly, sell,
export, re-export, transfer, divert or otherwise send the Goods or associated
information or technology to any destination or person prohibited under U.S., EU
or other local laws or regulations and the Customer will not use the Goods for,
and will not allow the Goods to be used for, any purposes prohibited by Law,
including, without limitation, for the development, design, manufacture or
production of nuclear, chemical or biological weapons of mass destruction. The
Goods may only be used in the jurisdiction to which they are delivered and may
not be redistributed.
10.2. New Zealand Customers. This Section 10.2 applies only if the Customer is
located in New Zealand. To the extent permitted by applicable law, each party
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agrees (a) that it is “in trade” (as such term is generally understood under the laws
of New Zealand) and (b)(i) to contract out of Sections 9, 12A, 13 and 14(1) of the
Fair Trading Act 1986 and (ii) that it is fair and reasonable that the parties be
bound by this provision.
10.3. Australian Customers. This Section 10.3 applies only if the Customer is located in
Australia. Nothing in this Agreement excludes, restricts or modifies any right or
remedy, or any guarantee, warranty or other term of condition, implied or
imposed by any legislation that cannot lawfully be excluded or limited, including
under the Competition and Consumer 2010 (Cth) (“Non-Excludable Provision”).
To the maximum extent permitted by law, Oxford’s entire liability for breach of a
Non-Excludable Provision in relation to this Agreement or the Customer’s use of
the Goods is limited to (at Oxford’s option): (i) replacing the relevant Goods, (ii)
supplying the relevant Goods again or (iii) repairing the relevant Goods, in any
such case in accordance with Sections 3.3 and Section 7.2.
10.4. United Kingdom Customers. This Section 10.4 applies only if the Customer is
located in the United Kingdom. Nothing in this Agreement excludes, restricts or
modifies any right or remedy, or any guarantee, warranty or other term of
condition, implied or imposed by any legislation that cannot lawfully be excluded
or limited, including under the Unfair Contract Terms Act 1977, as amended by
the Consumer Rights Act 2015 (the “UTCA”) (a “Non-Excludable Provision”).
To the maximum extent permitted by law, the Parties agree that any limitation of
liability, remedy, warranty, guarantee or other term of condition set forth in this
Agreement is reasonable (as such term is defined in the UTCA). To the maximum
extent permitted by law, in the event any limitation of liability, remedy, warranty,
guarantee or other term of condition set forth in this Agreement (i) is deemed not
to be reasonable (as such term is defined in the UTCA) and is therefore not
excludable or (ii) is otherwise deemed to be a Non-Excludable Provision,
Oxford’s entire liability for breach of a Non-Excludable Provision in relation to
this Agreement or the Customer’s use of the Goods is limited to (at Oxford’s
option): (i) replacing the relevant Goods, (ii) supplying the relevant Goods again
or (iii) repairing the relevant Goods, in any such case in accordance with Sections
3.3 and Section 7.2.
10.5. Audit. To audit compliance with this Agreement, Customer agrees that upon five
(5) days’ notice, Oxford shall have the right to inspect and audit Customer’s
records related to this Agreement. Any such inspection or audit shall be
conducted during regular business hours. If such inspections or audits disclose
Customer had breached the provisions of this Agreement, then Oxford may
terminate this Agreement immediately. Nothing in this clause shall be deemed to
limit any legal or equitable remedies available to either party and Oxford is
entitled to pursue equitable remedies to the fullest extent permitted under
applicable law.
10.6. Severability. If any provision of this Agreement is found to be invalid, illegal or
unenforceable, it shall be deemed modified to the minimum extent necessary to
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make it valid, legal and enforceable. If such modification is not possible, the
relevant provision shall be deemed deleted. Any such modification or deletion
shall not affect the validity and enforceability of the rest of the Agreement. All
restrictions specified in this Agreement shall apply to the maximum extent
permissible under applicable law. If Customer believes it has additional rights or
the right to act contrary to the express restrictions specified in the Agreement
under mandatory laws (including, without limitation, national laws implementing
Directive 91/250/EEC and similar laws), Customer agrees to provide Oxford with
at least thirty (30) days prior written notice and any reasonably requested
information before exercising such rights, to allow Oxford to offer alternatives at
Oxford’s sole discretion.
10.7. Non-Waiver. A waiver by Oxford of any right or remedy arising under this
Agreement or by law is only effective if given in writing and will not be deemed
to be a waiver of any subsequent breach or default. No failure or delay to exercise
any right or remedy provided under the Agreement or by law will constitute a
waiver by that party of that or any other right or remedy, nor will it prevent or
restrict the further exercise of that or any other right or remedy.
10.8. Notice. Any notice under this Agreement must be given in writing, which may
include email. Notice by post should be sent to Customer or Oxford’s address as
specified on the Order, or to the relevant party’s registered office if no such
address has been given, or as Customer or Oxford may otherwise direct in writing
from time to time. Notice will be deemed received: (i) if delivered personally, on
the date of delivery; (ii) if sent by prepaid first class post or other next working
day delivery service, on the second business day after posting; (iii) if delivered by
commercial courier, on the date the courier’s delivery receipt is signed; or (iv) if
sent by fax or email, one business day after transmission.
10.9. Governing Law. This Agreement, and any dispute or claim arising out of or in
connection with it or its subject matter or formation, will be governed by and
construed in accordance with: (a) with respect to Goods used within North or
South America, the laws of the State of New York, except for any conflict of laws
rules that would give rise to application of the substantive law of another state and
except to the extent the Customer is an in instrumentality of the US federal
government, in which case, this Agreement shall be governed by US federal law
to the extent required and applicable, and otherwise by the laws of the State of
New York, and (b) with respect to Goods used outside North or South America,
the laws of England. Customer hereby consents to the exclusive jurisdiction of:
(a) with respect to Goods used within North or South America, the state and
federal courts located in the State of New York, and (b) with respect to Goods
used outside North or South America, the courts located in England, for resolution
of any dispute or claim arising in connection with this Agreement.
Notwithstanding the foregoing, with respect to Goods used outside North or South
America, Oxford may, at its sole option, enforce this Agreement in any
jurisdiction in which Customer is subject to suit.
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10.10. Successors and No Third Party Beneficiaries. A person who is not a party to this
Agreement shall have no right to enforce its terms, except for Metrichor Ltd. and
each member of the Oxford Group, who are express third-party beneficiaries of
this Agreement. This Agreement is binding upon each party’s respective
successors and assigns.
10.11. Titles. The titles to the sections and paragraphs of this Agreement are solely for
the convenience of the Parties and are not an aid in the interpretation of the
Agreement.
10.12. Entire Agreement and Acknowledgement. This Agreement, together with the
incorporated terms and conditions, constitutes the complete and exclusive
agreement between Customer and Oxford with respect to the subject matter
hereof, and supersedes all prior or contemporaneous oral or written
communications, proposals, representations, understandings, or agreements not
specifically incorporated herein with respect to the subject matter hereof. To the
extent permitted under applicable law, the terms of this Agreement apply to the
exclusion of any other terms that Customer may seek to impose or incorporate,
including any terms specified on a purchase order, or which are implied by
statute, trade, custom, practice or course of dealing. This Agreement may not be
amended except in a writing duly signed by Customer and an authorized
representative of Oxford. Oxford may update these terms from time to time on
notice to Customer; provided that, if Customer is adversely affected by such
update, Customer has the option to terminate this Agreement by providing written
notice to Oxford of its intent to terminate within five (5) days after such notice is
received, and if Customer does not provide such notice of intent to terminate
within such five-day period, the updated terms shall apply to Customer; and
provided further that, such revised terms shall only apply to Orders accepted after
such change was published by Oxford.
10.13. Construction of Agreement. For the purposes of this Agreement, the use of the
singular shall include the plural, and vice versa, and the use of the conjunctive
shall include the disjunctive and vice versa.
10.14. Assignment. Oxford may at any time assign, transfer, mortgage, charge,
subcontract or deal in any other way with any or all of Oxford’s rights and
obligations under this Agreement in connection with a merger, change of control
or sale of assets. Customer may not assign, transfer, mortgage, charge,
subcontract, declare a trust over or deal in any other way with any or all of
Customer’s rights and obligations under this Agreement without Oxford’s prior
written consent.
10.15. Survival. The provisions of Sections 2.2, 2.3, 2.4, 3.4, 3.5, 3.6, 5, 6.3 and 7
through 10 shall survive any expiration or termination of this Agreement for any
reason.
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I, THE CUSTOMER TO WHICH THE PRECEDING TERMS AND CONDITIONS REFER,
ACKNOWLEDGE THAT I HAVE READ THE PRECEDING TERMS AND CONDITIONS
OF THIS AGREEMENT, THAT I UNDERSTAND THEM AND THAT I HEREBY
MANIFEST MY ASSENT TO, AND MY AGREEMENT TO COMPLY WITH, THOSE
TERMS AND CONDITIONS BY CLICKING ON THE BOX LABELED “I ACCEPT.” I
UNDERSTAND THIS IS A BINDING LEGAL AGREEMENT. SHOULD I DISAGREE WITH
ANY OF THE TERMS OR HAVE ANY QUESTIONS REGARDING THE SAME I SHALL
NOT CONTINUE TO THE NEXT PAGE AND SHALL CONTACT OXFORD AT